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ORDINANCE ON THE PROCEDURE FOR THE SETTLEMENT OF LABOR DISPUTES

ORDINANCE ON THE PROCEDURE FOR THE SETTLEMENT OF LABOR DISPUTES

To solve labor disputes in a timely and lawful manner for the protection of the legitimate rights and interests of the State, employees, labor collectives and employers;

Pursuant to Article 91 of the 1992 Constitution of the Socialist Republic of Vietnam;

Pursuant to the Labor Code;

This Ordinance prescribes the procedure for solving labor disputes at courts,

PART ONE

PROCEDURE FOR SOLVING LABOR DISPUTES

Chapter I

GENERAL PROVISIONS

Article 1.- Right to request the Court to protect one�s legitimate rights and interests

1. Employees, labor collectives and employers shall, according to procedures set forth by law, be entitled to file a labor law-suit to request the Court to protect their legitimate rights and interests.

Where there is a demand for the protection of the legitimate rights and interests of labor collectives the immediate higher level of the local Trade Union organization is entitled to file a law-suit.

2. The initiator of a labor law-suit may withdraw it or alter its contents. The parties involved are entitled to reach reconciliation.

Article 2.- Obligation to provide documents and evidences

The parties involved have the obligation to provide documents and evidences for the protection of their legitimate rights and interests.

Article 3.- Verification and collection of evidences

When necessary, the Court shall verify and collect evidences, or request the parties to a labor dispute, the concerned agencies, organizations and individuals to provide documents and evidences in order to secure the accurate and fair solution of the labor dispute. The requested parties, agencies, organizations and individuals shall have to supply such documents and evidences in time and fully as requested by the Court.

Article 4.- The Court�s duty to mediate

During the process of solving a labor dispute, the Court has the duty to mediate so that the involved parties can reach agreement on solving the case.

Article 5.- Equality of rights and obligations of all parties

The involved parties are equal in rights and obligations in the process of solving a labor dispute.

Article 6.- Open, impartial, timely, fast and lawful trial

Labor disputes shall be solved in an open, impartial, timely, prompt and lawful manner.

Article 7.- Spoken and written languages used the process of solving a labor dispute

The spoken and written language used in the process of solving a labor dispute shall be Vietnamese.

The parties to a law-suit are entitled to use the spoken and written language of their own ethnic group.

Article 8.- Mandated representatives

The involved parties may mandate counsels or other persons to represent them in the legal proceedings in accordance with the provisions of law.

Article 9.- Validity of the Court�s judgments and decisions

The already effective judgments and decisions of the Court on labor disputes must be respected by all State agencies, socio-political and economic and social organizations, armed forces units and all citizens. The workers, labor collectives, employers, agencies, organizations and units, which are obligated to implement the Court�s judgments and decisions, shall have to strictly comply therewith.

Article 10.- Supervision over the observance of law during the process of solving labor disputes

The People�s Procuracy shall supervise the observance of law during the process of solving a labor dispute as provided for by the Law on Organization of the People�s Procuracy and this Ordinance.

Chapter II

THE JURISDICTION OF THE COURT

Article 11.- Jurisdiction of the Court

The Court shall have jurisdiction to solve the following labor disputes:

1. Individual labor disputes between employers and employees over the rights and interests relating to employment, wages, income and other labor conditions; over the performance of labor contracts, and disputes arising in the process of apprentice that the local Mediation Council or the mediators of the labor agencies of districts, provincial capitals and cities (district labor agency for short) have failed in their conciliation attempts, except for the following individual disputes that need not to go through the conciliation process at the grassroots level:

a/ Disputes on labor discipline in the form of sacking, or on unilateral termination of labor contracts;

b/ Disputes on the compensation for damage caused to employers.

2. The collective labor disputes between labor collectives and employers over the rights and interests relating to employment, wages, income and other labor conditions; over the performance of labor contracts and collective labor agreements; disputes over the rights to establish, join and participate in the activities of the Trade Union organization, which were already solved by the Labor Arbitration Councils of provinces and cities directly under the Central Government (provincial Labor Arbitration Councils for short) but whose decisions, however, are not accepted by either the labor collectives or the employers.

Article 12.- The jurisdiction of Courts at different levels

1. The People�s Courts of districts, provincial capitals and cities (District People�s Courts for short) shall solve through first-instance proceedings the labor disputes prescribed in Paragraph 1 of Article 11 of this Ordinance, except those falling under the jurisdiction of the provincial People�s Courts.

2. The People�s Courts of the provinces and cities directly under the Central Government (provincial People�s Court for short) shall solve through first-instance proceedings the following labor disputes:

a/ The disputes described in Paragraph 2 of Article 11 of this Ordinance;

b/ The disputes described in Paragraph 1 of Article 11 of this Ordinance, involving foreign elements;

c/ Labor disputes under the jurisdiction of the district People�s Courts but deemed necessary to be solved by the provincial courts.

Article 13.- The Court�s territorial jurisdiction

The court competent to conduct first-instance trial of a labor dispute shall be the court at the place of work or residence of the defendant; if the defendant is a legal person, then the competent Court shall be the Court at the place where the legal person�s head-office is located, unless the law provides otherwise. The involved parties may agree to choose the Court at the place where the plaintiff works or resides to solve the dispute.

Article 14.- The Court�s jurisdiction at plaintiff�s choice

The plaintiff is entitled to choose the Court for solving a labor case in the following circumstances:

1. If the residence or office of the defendant is not known, the plaintiff may request the Court at the place where the defendant�s property is located, or at the place where his/her office is located or the place of his/her last residence to solve the dispute;

2. If the case arising from the activities of an enterprise�s branch, the plaintiff shall be entitled to request the court at the place where the enterprise has its office or the place where its branch is located to solve the dispute;

3. If the dispute arising from the activities of the employer who is represented by a contract supervisor or agent, the plaintiff is entitled to request the Court at the place where the principal employer has his/her office or resides or at the place where the contract supervisor or agent resides, to solve the dispute.

4. If the dispute arises from the breach of a labor contract, a collective labor agreement or a contract on apprentice the plaintiff is entitled to request the Court at the place where the labor contract, the collective labor agreement or the contract on apprentice is performed to solve the dispute.

5. If the case relating to a claim for compensation for damage caused to the life and health of employees, the medical expenses incurred as the consequences of labor accidents or occupational diseases, or a claim for the payment of wages, unemployment allowances, severance allowances, social insurance and medicare payment for employees who do not belong to the category of compulsory social insurance, the plaintiff may request the court at his/her place of residence or the place where the defendant has his/her office or resides to solve it;

6. If the case arising from a claim of an employee for compensation for damage caused to the property or for paying the training tuition, the plaintiff shall be entitled to request the Court at the place where that employee works or resides to solve it. Where there are many defendants with different places of work or residence, the plaintiff may request the Court at any of these places to solve it;

7. If in their labor contracts or collective labor agreements the parties have agreed at the Court to solve their dispute, the plaintiff is entitled to initiate a law-suit only at that Court.

Article 15.- Transferring the suits to other courts; solving disputes on jurisdiction

1. Where the Court that has received the case finds that it is not under its jurisdiction, it shall transfer the case to the Court that has jurisdiction over it, and shall notify the parties, the concerned agencies, organizations and individuals thereof.

2. The dispute over jurisdiction shall be solved by the immediate higher Court.

Chapter III

TRIAL COUNCILS, SUBSTITUTION OF JUDGES, ASSESSORS, PROCURATORS, CLERKS, EXPERTS AND INTERPRETERS

Article 16.- The Trial Councils

1. The first-instance Trial Council shall consist of two judges and one assessor.

2. The appellate Trial Council shall consist of three judges.

3. The supervisory Court or the re-opening Council at the Labor Court of the People�s Supreme Court shall consist of three judges.

4. The Commission of Judges and the Council of Judges of the People�s Supreme Court, the Commission of Judges of the provincial Court, when conducting the trial through supervision and re-opening procedures, must have at least two-thirds of their members to participate in the trial.

5. The Trial Councils mentioned in paragraphs 1, 2 and 3 of this Article shall make decision by majority of votes. The decisions of the Commission of Judges and the Council of Judges of the People�s Supreme Court, the Commissions of Judges of the provincial Court must be approved by more than half of the members of these bodies.

Article 17.- Substitution of judges, assessors, procurators, clerks, experts and interpreters

1. A judge and/or an assessor must refuse to participate in a trial or must be substituted if:

a/ He/she is concurrently an involved party, the representative, the counsel of either parties involved, relatives or witnesses in the case;

b/ He/she has participated in the same case as judge or assessor except in cases where he/she is a member of the Commission of Judges, the Council of Judges of the People�s Supreme Court or the Commission of Judges of the provincial Court, he/she shall be entitled to participate in repeated trials of the same case through supervisory or re-opening procedures;

c/ He/she has participated in the same case as a procurator, clerk, expert or interpreter;

d/ A judge and an assessor in the Trial Council are close relatives;

e/ There are the grounds showing that the judge and/or the assessor are not impartial while conducting the trial.

2. A procurator, and/or clerk must refuse to take part in a trial or must be substituted if:

a/ He/she has already participated in the same case at the other instance of the process;

b/ There are the grounds provided for in Points "a" and "e" of paragraph 1 of this Article.

3. The expert witness, the interpreter must refuse to participate in a trial or must be replaced if there are grounds prescribed in Points "a" and "e" of paragraph 1 of this Article

Article 18.- The procedure and power to replace judges, assessors, procurators, clerks, expert witnesses and interpreters

1. Before the opening of a trial, the replacement of judge(s), assessor(s), the clerk, expert witness(s) or the interpreter shall be made by the decision of the president of the People�s Court. The replacement of a procurator shall be decided by the Chief Procurator; if the procurator to be substituted is the Chief Procurator, the substitution shall be decided by the Chief Procurator of the immediate higher level.

2. At a trial, the substitution of judge(s), assessor(s), expert witness(s) and the interpreter shall be made by the Trial Council after listening to the opinion of the person to be substituted. In cases where there is no immediate substitute, the Trial Council shall decide to postpone the trial.

If the request to substitute a procurator is made at a trial, and the Trial Council considers the grounds for his substitution reasonable, it shall suspend the trial.

Within three days from the date of the postponement of the trial, the President of the Court and the Chief Procurator shall appoint other person to substitute.

Chapter IV

PERSONS PARTICIPATING IN LEGAL PROCEEDINGS

Article 19.- Parties

1. Employees, labor collectives and employers who participate in a legal proceedings as plaintiffs, defendants or as persons shall have related rights and obligations.

2. The party, who is an individual, may personally exercise or authorize in writing another person to exercise his/her procedural rights and obligations during the process of solving a labor dispute.

3. The party, who is a labor collective, shall exercise its procedural rights and obligations through a representative of the local Trade Union Committee.

4. The employer who is an organization shall exercise the procedural rights and obligations through his representative at law or his mandatory.

5. Where the Trade Union of a higher level files a labor-suit, it must provide documents, evidences and shall have the same procedural rights and obligations as those of a plaintiff. The Committee of the local Trade Union of the labor collective whose interests need to be protected must participate in the process as plaintiff.

Article 20.- Procedural rights and obligations of parties

1. A plaintiff may alter his/her claims. A defendant is entitled to counter the plaintiff�s claims or to submit his/her claims that relate to the plaintiff�s claims. The persons having related rights and interests may independently submit their own claims or join other parties in the legal proceedings.

2. The parties have the rights:

a/ To submit documents and evidences; be entitled to read, duplicate and examine the documents and evidences provided by the other party;

b/ To request the Court to apply temporary emergency measures;

c/ To participate in the trial;

d/ To request the replacement of judges, procurators, clerks, experts and/or interpreters if there are grounds defined in Article 17 of this Ordinance;

e/ To achieve conciliation;

f/ To plead at the trial;

g/ To appeal the decisions and judgments of the Court;

h/ To request the competent officials to protest the decisions and judgments of the Court through supervision and re-opening procedures;

3. The parties have the following obligations:

a/ To fully and promptly provide the relevant documents and evidences at the request of the Court;

b/ To be present at the trial at the Court�s subpoena. The defendants who do not appear at the trial after the second subpoena without plausible reasons may be fined from 50,000 VND up to 100,000 VND by the Court.

c/ To comply strictly with the regulations on Court order.

Article 21.- Procedural capacity of the parties

1. The employees fully 18 years old or over are entitled to exercise by themselves the procedural rights and obligations as a party in a legal proceeding.

2. The minors under 15 shall exercise their procedural rights and obligations through their representatives. The employees aged from full 15 years to under 18 may personally participate in the legal proceeding but in case of necessity the Court shall call in their representatives to participate in the legal proceedings.

3. If the parties are persons with physical or mental handicaps, thus being unable to participate in the legal proceeding their representatives must be called in to participate in the legal proceedings.

4. Where a party does not have any representative as described in paragraph 3 of this Article to participate in the proceeding, the Court shall appoint a next of skin of the party or a member of a social organization to represent him/her.

Article 22.- Representatives mandated by a party or parties

1. Parties may mandate counsels or other persons to participate in the proceedings as their representatives except the following:

a/ The persons who do not have Vietnamese citizenship or do not reside in Vietnam unless there are different provisions of law for the parties bearing foreign nationalities, persons without citizenship, and Vietnamese residing in foreign countries;

b/ Persons who are under full 18 years of age;

c/ Persons affected by mental diseases;

d/ Persons being criminally prosecuted or sentenced not yet franchised;

e/ The officials of the Court or People�s Procuracy;

f/ Experts, interpreters or witnesses of the trial;

g/ The relatives of the judges, people�s, assessors, clerks, procurators, who are participating in the trial.

2. The mandatory shall exercise procedural rights and obligations within the mandated powers.

3. Mandate for participation in a legal proceeding must be made in writing and legally certified.

Article 23.- Defenders of legitimate rights and interest of a party

1. The parties may personally defend or ask a person or persons to defend their legitimate rights and interests.

2. One defender may defend the interests of several parties to the same law-suit if the interests of the latter do not clash.

3. The persons defending the legitimate rights and interests of parties shall have the following rights:

a/ To participate in the process from the moment the case is filed;

b/ To request the substitution of judges; assessors; procurator(s), clerk(s), experts or interpreter(s) in accordance with the provisions of Articles 17, 18 and 20 of this Ordinance;

c/ To provide documents and evidences, to submit requests, to examine the dossier, to make the necessary duplicates from the dossier, to participate in conciliation efforts and in the trial.

4. The persons defending the parties� legitimate rights and interests are obligated to use procedural rights in accordance with the provisions of law so as to contribute to the determination of the truth of the dispute.

Article 24.- Witnesses

1. The persons who are aware of the facts relating to a labor dispute may personally come to or be subpoenaed by the Court or People�s Procuracy to testify.

2. Witnesses must appear when subpoenaed by the Court or People�s Procuracy, must testify faithfully all that they know about the case and take responsibility for their testimonies.

3. The persons who request the Court to subpoena witnesses must deposit an amount of money to cover the witnesses� expenses. The party who loses the case must pay these expenses if the testimonies help in solving the case.

Article 25.- Experts

1. When necessary, the Court or the People�s Procuracy shall, at their own initiative or at the request of parties, call in experts. The experts must appear if subpoenaed by the Court or the People�s Procuracy.

2. Experts are entitled to examine the documents of the case related to the objects to be presented for expertise.

Experts must give objective opinions on the objects presented for expertise.

3. The expenses incurred in carrying out expertise with regard to labor accidents or occupational diseases caused to employees must be born by the employer. For other cases, the loser must bear the expenses incurred in carrying out expertise if the results of the expertise help in solving the case; if not, the persons who requested the expertise, the Court or the People�s Procuracy who called in the experts must bear the incurred expenses.

Article 26.- Interpreters

1. Where a person participating in a process cannot speak Vietnamese, the Court shall have to provide an interpreter.

2. The interpreter must appear at the writ of the Court and must interpret in an accurate manner.

3. The loser must bear the expenses incurred by the interpretation.

Article 27.- Inheriting procedural rights and obligations

1. If a party to a law-suit, who is an individual, has died and his/her property rights and obligations are inherited by the heirs, the latter shall exercise the procedural rights and obligations of the deceased.

2. If the employer is an organization, is a merger or a split organization or with its ownership and/or its rights to administer or to use the property already transferred, the inheritor(s) of that organization�s rights and obligations shall exercise the former�s procedural rights and obligations.

3. The inheritance of procedural rights and obligations can be recognized by the Court at any stage of the process of solving a labor dispute.

Article 28.- Participation of the People�s Procuracy in a process

The People�s Procuracy may participate in any stage of the process of solving a labor dispute when necessary.

With regard to violations of laws relating to the legitimate rights and interests of employees who are a minor or an invalid, as well as other serious breaches of law, the People�s Procuracy is entitled to initiate a law-suit if nobody has done it.

Chapter V

COURT FEES

Article 29.- Court fees

The parties must pay court fees depending on the types of dispute and on the basis of their interests as well as the seriousness of their faults in the legal relationship to be solved by the Court.

The Government shall coordinate with the Supreme People�s Court in determining the court fees.

Article 30.- Persons who must deposit court fees; persons who must pay court fees

1. The plaintiffs or defendants having counter-claims, the persons with related interests and obligations having independent claims must deposit court fees, and pay court fees except for cases stipulated in Article 31 of this Ordinance.

2. Appellants in appellate review cases must deposit appellate court fees during the period of appeal; if no deposit of appellate court fees is made during this period, it shall be deemed that there is no appeal, except for cases of exemption or reduction of court fees.

3. If a plaintiff withdraws his/her law-suit before a trial is opened, he/she shall be eligible for a refund of 50% of the deposited court fee. In cases where a conciliation has succeeded before a trial is opened, the parties must pay 50% of the court fees set for the first-instance case. The parties may agree on the amount of court fees each of them has to pay; if they fail to reach an agreement, the issue shall be decided by the Court. In cases where the parties reach a conciliation at a trial, each of them must pay half of the court fees set for the first-instance case.

4. If a law-suit is temporarily adjourned, the court fees shall be determined when the trial resumes. If the case is suspended in accordance with the provisions in points a, c, d and e of Paragraph 1 of Article 41 of this Ordinance, the deposited court fees shall be remitted to the State budget.

5. Parties shall have to pay first-instance court fee if their claims are rejected by the Court; must pay appellate-instance court fees if the appellate courts sustain the first-instance decisions or judgments.

6. The court-fee depositor shall be refunded the difference if, by the Court decision, he/she has to pay a court fee less than his/her deposited amount or shall be refunded the whole deposited amount if, by the Court decision, he/she does not have to pay court fees.

Article 31.- Exemption from court-fee deposit and/or payment

1. The following parties shall be entitled to the exemption of court-fee deposit and/or payment:

a/ Employees claiming payment of wages and social insurance, compensation for damage caused by labor accidents and/or occupational diseases;

b/ Employees claiming compensation for damage caused by illegal firing, illegal termination of labor contracts;

c/ The local Trade Union�s Committee filing law-suits in the interests of the collectives of workers.

2. The local, provincial or branch Trade Union organization that files a law-suit or a protest shall not have to deposit the court fee, and/or to pay first-instance or appellate court fees.

The People�s Procuracy that initiates a law-suit or files a protest shall not have to deposit the court fee and/or to pay first-instance or appellate- instance court fees.

3. The parties, who are employees who do not fall into the cases defined in Paragraph 1 of this Article if faced with economic difficulties that are certified by the People�s Committees of communes, ward, district towns, may be, by the Court�s decision, fully or partially exempt from court-fee deposit and/or payment.

Chapter VI

FILING AND RECEIVING LAW-SUITS

Article 32.- Filing a law-suit

1. The initiator of a law-suit shall have to request in writing the competent Court to solve it within the following time limits:

a/ One year from the date when the dispute arises or six months from the date when the Labor Conciliation Council or the mediators of district labor agency failed to mediate the dispute over the sacking as a form of labor discipline, unilateral termination of labor contracts, or the compensation for damage caused to employers;

b/ Six months from the date when local labor conciliation councils or mediators of district labor agencies failed in their conciliation attempts in other individual labor disputes.

c/ Three months from the date when the decision of the provincial Labor Arbitration Council is rejected by the labor collective and/or the employer.

2. A law-suit must specify:

a/ The date of its filing;

b/ The Court to solve the case;

c/ Full names of the plaintiff(s) and defendant(s);

d/ Addresses of the plaintiff and defendant; if the defendant�s address is not known then his/her place of work or last residence or the place of his/her office must be indicated;

e/ The object of dispute, its value (if any);

f/ The process of negotiation, conciliation, and the decisions of the provincial Labor Arbitration Councils (if any);

g/ The claims to be presented to the Court for settlement.

3. The law-suit must be signed by the plaintiff or his/her representative. It must be attached with the documents related to the plaintiff�s claims.

4. The local Conciliation Council, the provincial Labor Arbitration Council, the mediator of the district labor agency shall have to submit to the Court the case dossier attached with the minute on the failure in conciliation, or the decision on the settlement of the dispute.

Article 33.- The law-suit initiator�s right to revise the claim

1. The initiator of a law-suit may revise the claims he/she has raised in his/her law-suit before the trial is opened.

2. At a trial, the reversion of claims can be accepted only if the trial is not postponed for further investigation, or if the parties agree with the reversion.

Article 34.- Remanding of lawsuits

The Court shall remand a lawsuit in the following cases:

a/ The initiator does not have the right to sue;

b/ The law-suit is made not in compliance with the provisions of Paragraph 2 of Article 32 of this Ordinance;

c/ The statute of limitation for the case has expired;

d/ The object of the case has not been solved by the local Labor Conciliation Council or the mediator of the district labor agency or the provincial Arbitration Council, except for matters that need not to go through conciliation at the local level;

e/ The law-suit has been already solved by a verdict or an effective decision of the Court or by a decision of another competent agency;

f/ The object is not under the jurisdiction of the Court.

Article 35.- Receiving law-suits

1. If the Court determines that the filed law-suit is under its jurisdiction it must immediately notify the plaintiff thereof. The plaintiff must deposit court fees within seven days after receiving the law-suit except in cases where he/she is eligible for the exemption of the court-fee deposit.

2. The date of receiving the law-suit is the date when the plaintiff produces the receipt of the court-fee deposit. In cases where the law-suit initiator is eligible for the exemption of the court-fee deposit, the date of receiving the case is the date of reception of the law-suit.

Chapter VII

PREPARATION FOR TRIAL

Article 36.- Time-limit for preparation for trial

1. Within seven days after receiving a labor law-suit, the Court must notify the defendant, persons having related rights and interests of the content of the case.

Within three days after receiving the notice, the defendant, the persons having interested rights and obligations must submit to the Court their written comments on the law-suit and other documents relating to the settlement of the case; if after the expiry of this time-limit the Court still does not receive the written comments, it shall continue solving the case on its own.

2. Within thirty days after receiving a law-suit, the judge, who is assigned to preside over the trial, must make one of the following decisions:

a/ To bring the case to court;

b/ To temporarily suspend the case;

c/ To suspend the case.

For complicated collective labor disputes, the time-limit prescribed in this paragraph shall not exceed 40 days.

3. Within ten days after the issuing of the decision to bring the case to trial, the Court must open the trial; this period may be extended for plausible reasons but shall not exceed 15 days.

4. Following the decision to bring the case to trial, within five days the Court must send the case dossier to the People�s Procuracy of the same level for examination, if the latter has filed the law-suit or has requested to participate in the trial.

Article 37.- Verification and collection of evidences

1. During the period of preparation, if it deems it necessary, the Court may itself or entrust another Court to verify and collect evidences for clarifying details of the case. The entrusted Court shall have the duty to perform at once the entrusted task and inform the mandator-Court of the results.

2. The verification and collection of evidences include:

a/ Requesting the parties to provide or add evidences or to opine on the necessary issues;

b/ Requesting the litigating parties, the concerned State agencies, organizations and individuals to provide evidences helpful to the settlement of the case;

c/ Requesting witnesses to testify on the necessary issues;

d/ On-spot verification;

e/ Calling in experts;

f/ Establishing an assessment council or requesting a specialized body to determine the value of the involved property in case of necessity.

Article 38.- Conciliation

1. Before deciding to open a trial, the Court shall conduct a mediation so that the parties may reach an agreement on the settlement of the case.

The plaintiff, the defendant, the persons having related rights and obligations, or their authorized representatives must be present when the Court mediates. If the plaintiff is still absent without plausible reasons after being lawfully subpoenaed for the second time, the Court then decides to suspend the case. After the plaintiff has requested in writing for a non-conciliation process, the parties other than the plaintiff are still absent without plausible reasons after being lawfully subpoenaed for the second time, the Court then shall record in writing the failure to conciliate, and decide to bring the case to trial.

2. If the parties have reached an agreement on the settlement of the case, the Court shall record in writing the successful conciliation and issue a decision to recognize the parties� agreement. The decision shall have legal effect.

If the parties cannot reach an agreement, the Court shall record in writing the unsuccessful conciliation and decide to bring the case to trial.

Article 39.- Decision to bring a case to trial

A decision to bring a case to trial must have the following contents:

1. Date and place to open the trial;

2. Whether the trial shall be held, openly or behind-door;

3. The full names of the parties and other persons participating in the process;

4. The content of the dispute;

5. The full names of the judge, assessors, the clerk and procurators who will participate in the trial (if any).

Article 40.- Temporary suspension of a case

1. The Court shall decide to temporarily suspend a law-suit in the following circumstances:

a/ The plaintiff or defendant, who is an individual, dies, the plaintiff-organization or defendant-organization ceases to exist, without any person or organization to inherit their procedural rights and obligations;

b/ The preparation time-limit has expired but one of the parties cannot appear at the Court for plausible reasons;

c/ The address of the defendant cannot be found;

d/ It is necessary to wait for the results of a relevant criminal, civil, economic, administrative or other labor dispute;

e/ The Court has received a written request to declare that of an enterprise which is a party to the case is insolvent;

f/ The inheritor of the procedural rights and obligations of the enterprise is not yet identified though there has been the decision on the merger or division of the enterprise, or on the transfer of its ownership right, management right or the right to use the property.

2. The Court shall continue solving the case if the reasons for the temporary suspension cease to exist.

3. The decision on temporary suspension of a case may be protested or appealed.

Article 41.- Suspending the settlement of a case

1. The Court shall decide to suspend a case in the following circumstances:

a/ The plaintiff or defendant, who is an individual, dies and there is nobody to inherit his/her rights and obligations; the plaintiff-organization or defendant-organization has been dissolved and there is nobody to inherit its procedural rights and obligations;

b/ The initiator of the law-suit withdraws it;

c/ The plaintiff still does not appear without plausible reasons after two subpoenas;

d/ The statute of limitation for the case has expired before the Court received it;

e/ The law-suit has been solved by an effective judgment or a decision of the Court or other competent body;

f/ There is a decision of the Court to open the procedure on declaration of bankruptcy of the enterprise that is a party to the case;

g/ The law-suit is not under the jurisdiction of the Court.

2. The decision of the Court to suspend the case may be appealed or protested, except the cases provided for in point "b" of paragraph 1 of this Article.

Article 42.- Sending the Court�s decisions

When there are decisions stipulated in Articles 39, 40 and 41 of this Ordinance, the Court must immediately send them to the People�s Procuracy of the same level, the parties or their counsels.

Chapter VIII

TEMPORARY EMERGENCY MEASURES

Article 43.- Application of temporary emergency measures

1. The parties are entitled to request in writing the Court to issue a decision to apply temporary emergency measures to protect their urgent interests and to secure the execution of judgments; the parties are liable before law for their request; if they are at fault in causing damage they shall have to pay compensations.

2. During the process of solving a case, the Court can, at its initiative or at a written request of the People�s Procuracy or the Trade Union organization as provided for by law, decide to apply temporary emergency measures and shall be liable for the decision. If damage is caused due to unlawful application of temporary emergency measures, compensation must be made.

Temporary emergency measures can be applied at any stage of the process of solving a law-suit; if it takes place before the opening of the trial, the judge to whom the case has been assigned shall decide; if it takes place at the trial, the Trial Council shall decide.

3. The request for the application of temporary emergency measures must be considered by the Court within three days from the date of receiving it; if the Court agrees with the request, it must immediately issue the decision. If the Court deems it necessary to apply temporary emergency measures, it is entitled to immediately issue the decision.

4. The period of validity of the decision must be clearly written therein but shall not exceed the time-limit for solving the case as provided for by law.

Article 44.- Temporary emergency measures

The temporary emergency measures shall include:

1. Temporary suspension of the decision to fire an employee;

2. Compelling the employer to pay in advance part of the wages, damage, allowances for labor accidents or occupational diseases.

3. Forbidding or compelling the parties, the concerned persons and organizations to perform certain acts if it is necessary for solving the labor case or securing the execution of the judgment.

Article 45.- Alteration and cancellation of temporary emergency measures

1. Temporary emergency measures may be altered or canceled.

2. An alteration or cancellation of temporary emergency measures shall be decided by the judge in charge of solving the case if it is made before the opening of the trial, and by the Trial Council if it is made during the trial.

Article 46.- Execution of complaint and protest against the decision to apply temporary emergency measures

1. A decision to apply temporary emergency measures shall be executed immediately even if it is complained about or protested against.

2. The parties shall be entitled to file complaint, and the People�s Procurary and Trade Union, as provided for by law, shall be entitled to protest to the president of the handling Court against the decision to apply temporary emergency measures.

Within three days from the date of receiving the complaint or protest, the president of the Court taking the case must consider and answer.

Chapter IX

FIRST-INSTANCE TRIAL

Article 47.- Persons participating in the trial

The trial shall be held in the presence of the parties or their representatives. In cases where the local Trade Union�s Committee files a law-suit, the representative of that Trade Union organization must be present at the trial. In cases where the Trade Union has not filed the law-suit, the Trade Union representative may participate in the trial as the defender of the rights and interests of the party who is the employee. If a higher level Trade Union organization of the local Trade Union has filed a law-suit, the representatives of both the superior Trade Union and the local Trade Union of the labor collective whose interests should be protected must be present at the trial as provided for in Paragraph 5 of Article 19 of this Ordinance.

If the presence of witnesses, experts and interpreters is indispensable the trial can be held only when they are present.

If the People�s Procuracy files a law-suit or asks to participate in a trial, then the trial can be held only in the presence of the procurator, or with the written opinion of the People�s Procuracy of the same level.

Article 48.- Formalities for opening a trial

1. At the beginning of a trial, the presiding judge reads the decision to open the trial for the case, checks the presence and identities of the subpoenaed persons, and explains to them about their rights and obligations at the trial. If the subpoenaed persons are absent, the Trial Council shall decide whether to postpone or go ahead with the trial.

2. The presiding judge introduces the members of the Trial Council, procurators, clerks, experts, interpreters and witnesses, and explains to the persons participating in the legal proceeding about their right to request the substitution of the Trial Council, procurators, experts or interpreters. If there is a request for the substitution, the Trial Council shall consider and decide.

3. The presiding judge explains to the experts and interpreters about their rights and obligations. These persons must swear to fulfill their duties faithfully.

4. The presiding-judge explains to witnesses about their rights and obligations. Witnesses must swear to testify faithfully. If the witnesses can be influenced by the testimony of other persons, the presiding-judge must separate the witnesses from these persons before hearing their testimonies.

5. The presiding-judge asks the parties or their representatives, the procurators, the parties� counsels whether they want to add evidences or to call in more witnesses. If there is a request for that, the Trial Council shall consider and decide.

Article 49.- Postponing a trial

1. The Jury shall postpone the trial in the following cases:

a/ The representative of the Trade Union that has filed the law-suit does not appear; the procurator is absent or there is no written opinion from the People�s Procuracy of the same level in case this body has filed the law-suit or requested to participate in the trial;

b/ The plaintiff, the defendant, the persons having related interests and obligations as well as independent claims are absent for the first time for plausible reasons;

c/ Members of the Trial Council, the procurator, the clerk, experts and/or the interpreter have been substituted but there are no immediate replacements.

2. The trial shall proceed if the parties request to solve the case in their absence or the parties other than the plaintiff are absent after being lawfully subpoenaed for the second time.

Article 50.- Conciliation at a trial

1. Before conducting the cross-examination at a trial, the Trial Council shall mediate the parties into an agreement on the settlement of the labor dispute.

2. If the parties can reconcile, the Trial Council shall record in writing the successful conciliation and issue the decision to recognize the parties� agreement; the decision shall be legally effective. If the parties fail to reconcile, the Jury shall go on with the trial.

Article 51.- Cross-examination at a trial

1. The Trial Council shall verify all the details of the case by hearing the testimony of the plaintiff, defendant, persons having related rights and interests, counsels of the parties, the Trade Union�s representatives, the employer�s representative, witnesses and experts, and by inspecting material evidences.

2. During the cross-examination the Trial Council shall put the questions first, then the procurators and the counsels of the parties, the persons participating in the trial are entitled to raise issues that are to be further examined by the Trial Council.

Article 52.- Pleading at a trial

After the completion of the cross-examination by the Trial Council, the parties or their representatives, the counsels of the parties, the representative of the Trade Union that has filed the law-suit, and the representative of the employer may plead and suggest their opinions on how to solve the case; the procurator shall present his opinion on the solution of the case.

Article 53.- Termination of a case at trial

1. At a trial, if the initiator of a law-suit withdraws it, the Trial Council shall issue the decision to terminate the case. If the parties reach a mutual agreement on the solution of the case, the Trial Council shall issue the decision to recognize the agreement of the parties. This decision shall be legally effective.

2. If any of the circumstances provided for in points "a", "c", "d", "e", "f" and "g" of Paragraph 1 of Article 41 of this Ordinance occurs during the trial, the Trial Council shall issue the decision to suspend the case.

Article 54.- Adoption, content and declaration of judgments

1. The decisions of the Trial Council shall be discussed by its members and adopted by a majority vote. The adoption of decisions and judgments must be recorded in writing together with all the opinions presented during the discussions and the decisions of the Trial Council.

2. A judgment must contain the following:

a/ Date and place of the trial;

b/ Full names of the Trial Council members, procurators and the clerk;

c/ Full names and addresses of the parties or their representatives;

d/ The claims of the parties;

e/ The facts already verified; the evidences and legal bases for solving the case;

f/ The decisions of the court;

g/ Court fees to be paid by the parties;

h/ The right of the parties to appeal.

3. The presiding judge reads the full text of the judgment and explains to the parties about their rights to appeal and obligations to comply with the judgment. The decisions on payment of wages, compensation for damage, payment of allowances to employees for labor accidents or occupational diseases or on the compulsory performance of certain acts may be executed immediately by decision of the Trial Council.

Article 55.- The competence to issue decisions, the content and validity of the Court�s decisions

1. The court is entitled to issue decisions to solve problems arising from the process of solving a labor dispute.

2. Before opening a trial, the judge assigned to solve the case is competent to issue decisions; at the trial the decisions shall be made by the Trial Council.

3. The contents of a decision shall include:

a/ The Court that solves the case;

b/ The date of making the decision;

c/ Full names and addresses of the parties and other persons participating in the trial;

d/ The claims of the parties and reasons for making the decisions;

e/ The legal grounds for making the decision;

f/ The specific decisions;

g/ The parties� right to appeal.

Article 56.- Alteration and amendment to a judgment or decision

The Court shall not be entitled to alter or make additions to the judgment or decision that has been declared, except in cases where there are obvious errors in data calculation and spellings, but such alteration and amendment must be notified immediately to the parties, the People�s Procuracy and the persons or organizations having related rights and interests.

Article 57.- Minute of a trial

1. The minute of a trial must reflect fully and clearly all procedural events occurring during the trial. The presiding judge shall check the minute and sign it together with the clerk.

2. Within three days from the date of declaration of the judgment, the parties or their representatives, the representative of the Trade Union that has filed the law-suit, the employer�s representative shall be entitled to check the minute and request revisions or amendments to it. The presiding-judge, the clerk and the requesting persons shall sign to certify the revisions and amendments. If the request for a revision or amendment to the minute is not accepted, the requesting persons are entitled to have their opinions recorded and included into the case dossier.

Article 58.- Provision of the excerpts and copies of judgments or decisions

Upon completion of a trial, or upon the issuance of a decision to open a trial which, however, is not opened yet, the parties, the Trade Union that has filed the law-suit and the employer�s representative shall be provided by the Court with excerpts of the judgment or decision on the case. Within 7 days from the date of the declaration of the judgment or decision, the Court must provide the parties at their request with the copies of the judgment or decision and must simultaneously send one copy to the People�s Procuracy of the same level. If a party was absent from the trial, the copy of the excerpts of the judgment or decision on the case must be sent to him/her immediately.

Article 59.- Penalizing the violators of the courtroom order

Violators of the courtroom order can be served a warning, fined, forced to leave the courtroom or arrested at the discretion of the presiding judge, depending on the seriousness of their violations.

The People�s Police has the duty to protect the courtroom, and obey the orders of the presiding judge to force violators to leave the courtroom or to arrest them.

Chapter X

APPELLATE REVIEW PROCEDURE

Article 60.- Right to appeal and protest

1. The parties or their representatives and the Trade Union that has filed the law-suit shall have the right to appeal the judgment, the decision on temporary suspension or termination of the case made by the Court of First Instance and to request the immediate higher Court to conduct an appellate trial, except for cases prescribed in Paragraph 1 of Article 53 of this Ordinance.

2. The People�s Procuracy of the same or next higher level is entitled to protest the judgment and decision of the Court of First Instance.

3. The appellant must file an appeal; the People�s Procuracy files a protest act. The appeal or protest act must clearly state:

a/ The content of the part of the judgment or decision of the Court of First Instance that is appealed or protested;

b/ The reason for appealing or protesting;

c/ The claims of the appellant or protestant.

Article 61.- Time-limit, procedure for making appeals or protests

1. The time-limit for making an appeal is ten days from the date when the Court declares the judgment or issues the decision; if the parties are absent at the trial, this time-limit shall be calculated from the date when the copy of the judgment or decision is served to them or is displayed at the office of the People�s Committee of the commune, ward or district- town where the parties reside or where the head office is located if the party is a legal person.

2. The time limit for making a protest is 7 days for the People�s Procuracy of the same level, and 10 days for the next higher People�s Procuracy after the Court declares the judgment or issues the decision. If the procurator has not participated in the trial, the time-limit for making a protest shall be calculated from the date when the People�s Procuracy of the same level receives the copy of the judgment or decision.

3. If an appeal or a protest is made beyond that time-limit due to objective obstacles, such time-limit shall be ten days for making an appeal and 7 days for making a protest, after the obstacles cease to exist.

4. The appeal or protest shall be sent to the Court of First Instance that has solved the case. Within seven days from the date of receiving the appeal and protest or from the date when the appellant produces the receipt of the appellate court-fee deposit payment if he/she has to pay that sum, the Court of First Instance must send the appeal or protest together with all the case dossier to the relevant Court of Appeals.

Article 62.- Notice of appeals and protests

1. Upon sending the appeal or protest together with all the case dossier to Court of Appeals, the Court of First Instance must notify the People�s Procuracy of the same level, the parties and the persons having related rights and obligations thereof. The People�s Procuracy must send to the parties which have rights and obligations relating to the protest a copy of the protest act.

2. The persons who have rights and obligations relating to the appeal or the protest must submit to the Court of Appeals their opinions on the appeal or protest within seven days from the date of receiving the notice.

Article 63.- Withdrawal of appeals and protests

1. Before or during an appellate trial, the appellant or the People�s Procuracy may withdraw the appeal or protest, or part of it.

2. The Court shall decide to terminate an appellate trial in case the appellant or procurator withdraws the appeal or protest.

Article 64.- Consequences of appeals and protests

The part of the judgment or decision that is appealed or protested shall not have legal effect. The part that is not appealed or protested shall retain is legal effect.

Article 65.- Addition and determination of evidences

1. Before or during an appellate trial, the appellant, the People�s Procuracy that has filed a protest, persons having rights and interests relating to the appeal or protest, the counsels of the parties shall be entitled to add new evidences.

2. The Court of Appeals shall, at its own discretion or at the request of the parties, examine the newly added evidences or mandate another Court to do so.

Article 66.- Scope and time-limit of appellate trial

1. The Court of Appeals shall review the appeal or protest, and the part of the judgment or decision that relates to the content of the appeal and protest.

2. Within twenty days from the date when all the case dossier submitted by the Court of First Instance is received, the Court of Appeals must open an appellate trial; in cases where there are many complicated facts, such time-limit shall be 30 days.

Article 67.- Cases where the Court of Appeals issues a decision without opening an appellate review trial

The Trial Council at an appellate review instance shall not open a trial nor subpoena the parties in the following cases:

a/ To review the appeals and protests made after the expiration of the provided period;

b/ To review the appeal or protest relating to the part on court fees;

c/ To review the appeal or protest against the decisions of the Court of First Instance.

Article 68.- Preparation for an appellate review trial

Prior to an appellate review trial, the Court may apply temporary emergency measures, temporarily suspend or terminate the case pursuant to the provisions of this Ordinance.

Article 69.- Persons participating in an appellate review trial

1. The People�s Procuracy of the same level must participate in an appellate review trial in case it has filed a protest. For other cases the People�s Procuracy shall participate when it deems necessary. If the People�s Procuracy participates in a trial, the Court shall send the former the case dossier for study within five days.

2. The appellant, the Trade Union organization that has filed the law-suit, the employer�s representative, the persons having interests and obligations relating to the appeal or protest must be subpoenaed to participate in the trial.

3. The Court shall call in experts, an interpreter or witnesses only at the request of the parties or when it is necessary for reviewing the appeal or protest.

4. If the procurator who has to participate or is requested to participate in a trial does not appear, the Trial Council shall postpone the trial. If the persons mentioned in Paragraphs 2 and 3 of this Article are absent without plausible reasons the Court shall still proceed with the trial.

Article 70.- Appellate review trial, competence of the Court of Appeals

1. An appellate review trial shall be conducted in accordance with the same procedures as for the first-instance trial. Before reviewing the appeal or protest, one member of the Trial Council presents the content of the case, the decision and judgment of the Court of First Instance and the content of the appeal or protest.

2. The Court of Appeals shall have the competence:

a/ To reject the appeal or protest and sustain the first-instance judgment or decisions;

b/ To revise the whole or part of the first-instance judgment or decision;

c/ To reverse the first-instance judgment or decision appealed and remand the case to the Court of First Instance for retrial if there were serious procedural violations, or if there is a lack of evidences that the Court of Appeals is not able to add;

d/ To temporarily suspend the case when any of the circumstances prescribed in Paragraph 1 of Article 40 of this Ordinances occurs;

e/ To terminate the case when one of the circumstances prescribed in Paragraph 1 of Article 41 of this Ordinance occurs.

3. The first-instance judgment or decision shall be revised wholly or partly if:

a/ Its content is contrary to law or irrelevant to the case;

b/ There are new evidences which show that the first-instance judgment or decision is contrary to law or does not conform to the objective truth of the case.

Article 71.- Judgment or decision of the Court of Appeals

1. Apart from the contents provided for in Articles 53 and 54 of this Ordinance, the judgment or decision of the Court of Appeals must clearly state the part of the judgment or decision that was appealed or protested, the content of the appeal or protest, the decision made by the Court of Appeals.

2. The judgment or decision of the Court of Appeals shall take legal effect. Within five days from the date the judgment or decision is made a copy of the judgment, decision must be sent to the parties, the Trade Union that has filed the law-suit, the employer�s representative, the persons having the rights and interests relating to the appeal or protest and the People�s Procuracy.

Article 72.- Appellate review of decisions of the Court of First Instance

1. When reviewing an appealed or protested decision of the Court of First Instance, the Court needs not to open a trial and to subpoena the parties, except in case of necessity to hear their opinions before making decisions.

2. The Court of Appeals must issue the decision on the solution of the appeal or protest within ten days from the date of receiving the appeal or protest.

3. When examining the appealed or protested decisions of the Court of First Instance, the Court of Appeals shall have the competence provided for in Article 70 of this Ordinance.

Chapter XI

SUPERVISION AND RE-OPENING PROCEDURES

Article 73.- Grounds for protesting through supervision and re-opening procedures

1. Effective judgements or decisions of Courts shall be protested through supervision procedures if there is any of the following grounds:

a/ There are serious violations against procedural formalities;

b/ The determination part in the judgment or decision does not correspond to the real facts of the case;

c/ There is a serious error in the application of law.

2. Effective judgments or decisions of Courts shall be protested through re-opening procedure if there is any of the following grounds;

a/ New and important facts of the case, which the parties could not be aware of when the case was solved, are found;

b/ There is evidence that the testimonies of the witnesses, the translation by the interpreter or the conclusions of the experts are not true, or there were fabricated evidences;

c/ The judge, procurator or clerk deliberately altered the case dossier;

d/ The judgment or decision of the Court or the decision of a State bodies, on which the Court based itself to solve the case, is annulled.

Article 74.- Persons having the right to protest through supervision or re-opening procedures

1. The President of the People�s Supreme Court and the General Procurator have the right to protest through supervision or re-opening procedures against effective judgments or decisions of Courts of all levels.

2. The Vice-presidents of the People�s Supreme Court and Vice-General Procurators have the right to protest through supervision and re-opening procedures against effective judgments or decisions of all local People�s Courts.

3. The presidents of provincial People�s Courts, the Chief Procurators of provincial People�s Procuracy have right to protest through supervision and re-opening procedures against effective judgments or decisions of the district People�s Courts.

Article 75.- Time-limit and notice for protests through supervision and re-opening procedures

1. The time-limit for filing a protest through supervision and re-opening procedures is six months from the date the judgment or decision takes effect; if the protest is favorable for the employees, such time-limit shall be one year.

2. The protests must be sent to the Court that has made the judgment or decision being under protest, the Court that shall solve the case through supervision and re-opening procedures, the parties and to the persons having rights and obligations relating to the content of the protest.

The Court that shall solve the case through supervision and re-opening procedures must send the protest with the case dossier to the People�s Procuracy of the same level within ten days from the date of receiving the protest.

3. The protest act must clearly state the grounds for protesting. Before or at a trial, the protestant has the right to withdraw his/her protest.

4. The protestant has the right to postpone or temporarily suspend the execution of an effective judgment or decision that is protested.

Article 76.- Scope, competence and time-limit for supervision and re-opening procedures

1. The Trial Council in supervision and re-opening cases can examine only the content of the case, that relates to the part under protest.

2. The Commission of Judges of the provincial Court shall examine through supervision or re-opening procedures cases in which the effective judgments or decisions made by district Courts are protested.

3. The Labor Tribunal of the People�s Supreme Court shall examine through supervision and re-opening procedures cases in which the effective judgments or decisions made by Labor Tribunal of provincial People�s Courts are protested.

4. The Commission of Judges of the People�s Supreme Court shall examine through supervision and re-opening procedures cases in which the effective judgments or decisions made by Courts under the People�s Supreme Court are protested.

5. The Commission of Judges of the People�s Supreme Court shall examine through supervision and re-opening procedures cases in which the decisions made by the Commission of Judges of the People�s Supreme Court are protested.

6. Within one month from the date of receiving the case dossier, the Court must open a supervision or re-opening trial.

Article 77.- Supervision or re-opening trial

The parties and the persons having rights and obligations related to the protest shall not be subpoenaed to the supervision or re-opening trial except in cases where the Court deems it necessary to hear their opinions before making a decision.

2. At a trial, one member of the Trial Council shall present the content of the case and the content of the protest. If the Court has subpoenaed persons to participate in the process, the latter shall present their opinions before the procurator gives his opinion on the solution of the case; the Trial Council shall discuss and make judgment or decision.

Article 78.- Competence of the Trial Council in supervision or re-opening case

The Trial Council in supervision and re-opening cases shall have the power:

1. To reject the protest and sustain the effective judgment or decision;

2. To revise the whole or part of the protested judgment or decision;

3. To reverse the effective judgment or decision and remand the case for the first-instance re-trial or appellate review instance;

4. To reverse the effective judgment or decision and to suspend solving the case as provided for in Paragraph 1 of Article 41 of this Ordinance.

PART II

SETTLEMENT OF STRIKES

Chapter XII

PROVISIONS ON STRIKES

Article 79.- The moment when the right to strike arises

The right to strike arises from the moment when the provincial Labor Arbitration Council decided to solve collective labor dispute but the involved labor collective does not agree with the decision nor wants to have the dispute decided by the People�s Court.

If the workers in an enterprise belonging to the category of enterprises where strikes are prohibited by the Government disagree with the decision of the provincial Labor Arbitration Council, they are entitled to request the People�s Court to solve the dispute according to the procedure set forth in Part I of this Ordinance.

Article 80.- Grounds for recognizing a strike lawful or declaring a strike unlawful

1. A strike shall be lawful when it meets the following conditions:

a/ It must arise from a collective labor dispute and within the scope of the labor relation;

b/ It is staged by employees of an enterprise within that enterprise;

c/ The involved labor collective disagrees with the decision of the provincial Labor Arbitration Council of the respective province but does not want to file a law-suit to request the Court to solve the case;

d/ It is in accordance with the provisions in Paragraphs 1 and 2 of Article 173 of the Labor Code;

e/ The enterprise where the labor collective stages the strike is not listed among the public services enterprises or enterprises essential for the national economy, security and defense, as provided for by the Government;

f/ It does not violate the decision of the Prime Minister on postponement or termination of strikes.

2. Any strike that lacks one of the conditions stipulated in Paragraph 1 of this Article is unlawful.

Article 81.- Preparation for strikes

1. When one-third of the employees in a labor collective of an enterprise, where the strike would take place, or more than half of the employees of an unit of the enterprise, where the strike would take place, request a strike, the local Trade Union�s Committee shall collect opinions of the labor collective of the enterprise or of the unit of the enterprise through secret ballots or the collection of signatures to determine the number of employees supporting the strike. If the local Trade Union�s Committee initiates a strike, it must also organize the collection of opinions of the labor collective through secret ballots or collection of signatures.

2. A strike is called by the decision of the local Trade Union�s Committee if more than half of the labor collective supports it. If more than half of the employees in the labor collective support a strike but the local Trade Union�s Committee considers it necessary to gather opinions of the labor collective again, a poll shall be conducted within three days from the date when the result of the previous poll was available. If more than half of the employees in the labor collective still support the strike, the local Trade Union�s Committee must organize and lead the strike.

Article 82.- Presenting the demands, sending of notice

1. Upon having decided to strike, the local Trade Union�s Committee shall appoint representatives, not more than three, to present the demands to the employer, and at the same time shall send a notice to the provincial labor agency and a copy of it to the provincial Trade Union organization. The service of the request act or the sending of the notice must be done three days at the latest before the strike is to commence as indicated in the request act and the notice.

2. The request act and the notice must clearly state the issues in dispute between the labor collective and the employer, the contents of demands to be satisfied, the results of the ballot or collection of signatures of supporters of the strike, and the time when the strike shall begin.

Article 83.- Right of parties to self- determination

The voluntary reconciliation between the labor collective and the employer shall be given priority consideration before the Court makes a decision to settle the strike.

Article 84.- Acts that are forbidden before, during and after a strike

1. Before, during and after a strike, the following acts shall be forbidden:

a/ Obstructing the exercise of the employee�s right to strike or pressurizing other people to strike;

b/ Resorting to violence, damaging machines, equipment and other property of the enterprise, violations against public security order;

c/ Firing employees or transferring them to other places because of their participation in the strike;

d/ Discrimination or retaliation against persons who participated or led the strike.

2. Persons who committed any act mentioned in Paragraph 1 of this Article or who failed to comply with the decision of the Prime Minister, decisions of the People�s Courts shall be subject to compensation for damage, administrative sanctions or examined for penal liability, depending on the seriousness of the violations.

The Government shall determine the administrative sanctions against the administrative violations committed before, during and after the strike.

Article 85.- Supervision over the observance of law during the strike

The People�s Procuracy shall supervise the observance of law during the process of settling a strike pursuant to the Law on Organization of People�s Procurary, to the Labor Code and this Ordinance

Article 86.- Postponing or terminating the strike

Whenever a strike is considered a serious danger to the national economy, national security or public security, the Prime Minster shall decide to suspend or terminate the strike and assign a competent State body to coordinate with the Trade Union organization of the same level in solving it. If the labor collective does not agree with the solution of the dispute by the competent State body, it may request the Court to settle it.

The procedure for postponing or terminating the strike shall be stipulated by the Government.

Chapter XIII

PROCEDURES FOR SETTLEMENT OF STRIKES

Section I. FILING AND ACCEPTING APPLICATIONS FOR SETTLEMENT OF STRIKES

Article 87.- The right to request the Court to settle strikes

1. Before, during and after a strike, the local Trade Union�s Committee may send an application to the Court requesting it to declare the strike lawful, and the employer may send an application to the Court, requesting it to determine that the strike is unlawful.

2. Before or during a strike, the provincial labor agency, and the provincial Trade Union organization is entitled to request in writing the Court to determine the legitimacy or illegitimacy of the strike. The People�s Procuracy is entitled to initiate a legal action to request the Court to declare a strike unlawful.

Article 88.- Application and attached documents

1. An application of a labor collective or an employer for the settlement of a strike by the Court must clearly state:

a/ The name and address of the Committee of local Trade Union organization; the full names and addresses of the leaders of the strike;

b/ The full name and address of the employer;

c/ The name and address of the enterprise where the labor collective is on strike;

d/ The reason for the strike;

e/ The demands of the strikers.

The application must be attached with the copies of the request act, the notice of the strike, the decision of the provincial Labor Arbitration Council on the settlement of the collective labor dispute, as well as other documents relating to the settlement of the strike.

If the complainant is the employer he must pay a fee at a rate fixed by the Government.

2. The act of a provincial labor agency and provincial Trade Union organization requesting the Court to conclude that a strike is lawful or unlawful as well as the act of the People�s Procuracy that has initiated a legal action must clearly state:

a/ The name and address of the requesting agency, the full name and position of the person who signes the act;

b/ The name and address of the enterprise where the collective labor is on strike;

c/ The reason for requesting the Court to conclude that the strike is lawful or unlawful;

d/ Other requests.

The acts must be attached with documents, evidences relating to the request for the conclusion of whether the strike is lawful or unlawful.

Article 89.- Jurisdiction of the Court

The Labor Tribunal of the People�s Court of the province where the head-office of the enterprise whose labor collective strikes is located has the jurisdiction to settle the strike.

Article 90.- Obligation to provide documents and evidences

The Committee of the local Trade Union organization and the employer shall have the obligation to provide all necessary documents or evidences at the request of the Court during the process of settling a strike and is liable for the accuracy of those documents or evidences. If the provincial labor agency, the provincial Trade Union organization or the People�s Procuracy that has initiated a legal action has requested the Court to settle the strike, these bodies must provide documents and evidences.

Article 91.- Receiving applications

Within three days from the date of receiving the application, the Court must consider it and the attached documents. If the settlement of the strike is under its jurisdiction, the Court must docket the application and notify the local Trade Union, the employer, the provincial labor agency, the provincial Trade Union organization and the People�s Procuracy of the same level thereof.

Section II. PREPARATION FOR SETTLEMENT OF STRIKE

Article 92.- Time-limit for preparation for settlement of strike

1. Upon docketing the application, the President of the Labor Tribunal of the provincial People�s Court shall assign one judge to settle the strike.

2. Within three days from the date of docketing the application, the judge in charge of settling the strike must issue one of the following decisions:

a/ To settle the strike;

b/ To suspend the settlement of the strike.

Article 93.- Tasks and powers of judges

1. The judge assigned to settle a strike shall have the following tasks and powers:

a/ To collect necessary documents and evidences so as to establish the dossier of the settlement of the strike;

b/ To conduct an on-spot verification of facts;

c/ To issue a decision on the application of temporary emergency measures;

d/ To mediate between the Committee of the local Trade Union and the employer on the settlement of the strike.

2. During the process of settling a strike if there is any element of a crime, the judge shall supply documents thereof to the People�s Procuracy to consider a criminal prosecution.

Article 94.- Responsibility of the Court to mediate

During the process of settling a strike the Court shall have the responsibility to mediate between the Committee of the local Trade Union organization and the employer to reach an agreement on the settlement of the strike.

Article 95.- Suspending the settlement of a strike

The Court shall terminate a strike in the following cases:

1. The requesting person withdraws his/her request; the People�s Procuracy withdraws its decision to initiate a legal action;

2. The Committee of the local Trade Union and the employer have reached an agreement on the settlement of the strike before the Court makes a decision to settle it.

Article 96.- Temporary emergency measures

1. During the process of settling a strike, if necessary the Court may decide to apply temporary emergency measures or compel the labor collective and the employer to perform certain acts.

2. The application of temporary emergency measures shall be decided by the judge in charge of settling the strike, or by the Council for the Settlement of Strikes. The decision on application of temporary emergency measures must clearly state the duration of its validity.

3. The decision on application of temporary emergency measures must be executed immediately and may be revised or annulled pursuant to the provisions of Article 45 of this Ordinance.

4. The Committee of the local Trade Union and the employer shall be entitled to complain to, and the People�s Procuracy shall be entitled to recommend the President of the Court in charge of settling of the strike about the decision on the application of temporary emergency measures.

Within three days from the date of receiving the complaints or recommendations, the President of the Court must consider them and answer.

Section III. MEDIATION MEETINGS

Article 97.- The purpose of a mediation meeting

A mediation meeting shall be organized with the judge in charge of settling of the strike in the chair so that the local Trade Union�s Committee and the employer may reach an agreement on the settlement of a strike.

Article 98.- Persons participating in a mediation meeting

1. The representative of the local Trade Union�s Committee and the employer must be present at the mediation meeting.

2. The representatives of the People�s Procuracy the provincial labor agency and of the provincial Trade Union organization shall have the duty to attend the mediation meeting.

In case of necessity, the Court may call in experts in relevant fields to attend the mediation meeting as consultants..

3. A mediation meeting must be postponed if the representative of the Committee of the local Trade Union or the employer is absent.

Within three days from the date of postponing the mediation, the judge must hold another mediation meeting.

Article 99.- Conducting mediation meeting

1. The judge assigned to settle the strike shall organize and preside over the mediation meeting.

2. After the judge introduces the persons participating in the mediation meeting, the representative of the Committee of the local Trade Union presents the subject-matter of the collective labor dispute, the decision of the provincial Labor Arbitration Council, the reasons for the disagreement with this decision and the demands of the labor collective that should be satisfied by the employer.

3. The employer presents his opinion on the proposals and demands of the labor collective, the plan for the settlement of the collective labor dispute and the plan to settle the consequences of the strike.

4. The representative of the provincial labor agency, and the representative of the provincial Trade Union organization state their opinions on the proposals and demands of both the labor collective and the employer; the representative of the People�s Procuracy then states his/her opinion on the solution of the strike.

5. The judge assigned to settle the strike shall cite the legal grounds, explain to the parties and mediate for an agreement on the settlement of the strike.

If the parties reach an agreement on the settlement of the strike, the judge shall write a minute of the successful mediation and issue the decision to recognize the agreement between the parties. This decision shall have legal effect and shall be sent to the parties, the provincial Labor Arbitration Council and the People�s Procuracy. In cases where the parties fail to reconcile, the judge shall male a writte record of the failure to reconcile and demand the employer to propose a new plan to settle the strike within three days from the date of making the minute of unsuccessful mediation and the parties must negotiate with each other about that plan. If the parties still fail to agree, the judge shall ask the Committee of the local Trade Union to collect opinions among the labor collective on the plan proposed by the employer within three days from the date of issuing the decision on organizing the poll. If more than half of the employees in the labor collective agree with that plan, the judge shall issue the decision to recognize the agreement between the parties; if more than half of the employees in the labor collective do not agree, the judge then shall decide to hold a meeting to determine the legitimacy of the strike. Within three days from the date of issuing the decision, the Court must hold the meeting.

The minute of the successful or unsuccessful mediation must be signed by the judge, the secretary of the mediation meeting and by the parties.

Section IV. DETERMINATION OF THE LEGITIMACY OF STRIKES

Article 100.- Persons participating in a meeting to determine the legitimacy of a strike

1. The Council for Settlement of Strikes consists of three judges of the Labor Tribunal of the provincial People�s Court with the judge assigned to settle the strike as President.

2. The People�s Procuracy shall have the duty to attend the meetings of the Council.

3. The Committee of the local Trade Union, the employer or his representative must attend the meetings of the Council.

Article 101.- The procedure for determining the legitimacy of a strike

1. Before determining the legitimacy of a strike, the judge who is the chairperson of the Council recounts the process of settling the strike, the development and results of the mediation meeting.

The Committee of the local Trade Union, the employer or his representative may present their opinions.

2. The representative the People�s Procuracy states his/her opinion on the legitimacy of the strike.

3. The Council for Settlement of Strikes shall discuss and determine the legitimacy of the strike by a majority vote.

Article 102.- The decision of the Court

1. While considering the legitimacy of a strike, the Court shall be entitled to make the following decisions:

a/ The strike is lawful. In this case, if the employer is at fault, the employees shall receive full payment during the whole period of the strike; the employer must meet the legitimate demands and other interests of the employees in accordance with the provisions of law.

b/ If the strike is unlawful the labor collective must stop the strike. In this case, the Court must base itself on the fault of each party to decide the payment of wages and settle other interests for the employees in accordance with the regulations of the Government.

2. Those employees who have not participated in the strike but had to stop working shall be paid wages at the rate agreed upon by the two parties but not lower than the minimum wage fixed by the Government.

3. The decision of the Labor Tribunal of the provincial People�s Court on the strike shall take immediate effect. The Committee of the local Trade Union and the employer shall have the right to submit their complaints over the decision of the labor tribunal to the Court of Appeals of the People�s Supreme Court within three days.

Within three days from the date of receiving the dossier of the strike settlement, a group of three judges appointed by the President of the Court of Appeals of the People�s Supreme Court must solve the complaints. The decision of the Court of Appeals of the People�s Supreme Court shall be final.

PART III

IMPLEMENTATION PROVISIONS

Article 103.- Settling labor disputes and/or strikes involving foreign elements

1. The provisions of this Ordinance shall be applicable to settling the labor dispute and/or the strikes in Vietnam that involve foreign elements, except in cases where the International Agreements which the Socialist Republic of Vietnam has signed or acceded to provide otherwise.

2. The provisions in Part I of this Ordinance shall also be applicable to the settlement of labor disputes outside the territory of the Socialist Republic of Vietnam between the employer and the employees, who are both Vietnamese citizens.

Article 104.- Execution of judgments and decisions of the Court

The judgments and decisions of Courts on labor disputes as well as on the settlement of strikes shall be executed in accordance with the provisions of the Ordinance on execution of civil judgments.

Article 105.- Validity of the Ordinance

This Ordinance takes effect on July 1, 1996.

All the previous provisions which are contrary to this Ordinance are now annulled.

Article 106.- Guiding the implementation of the Ordinance

The Government, the People�s Supreme Court, the People�s Supreme Procuracy within the scope of their tasks and powers shall guide the implementation of this Ordinance.

On behalf of the Standing Committee

of the National Assembly

Chairman
NONG DUC MANH